The good news is that the powers that be seem to have finally realised the answer doesn’t only lie in draconian prison sentences. Education and tackling minority groups seeing themselves outside the system are apparently going to be behind a prevention plan.
However, in line with the ‘NHS approach’, the plan is not only about prevention but also cure and that will inevitably involve the Criminal Justice System.
Currently sentences for Carrying a bladed article [S139 Criminal Justice Act 1988] are governed by the Sentencing Council’s Guideline which gives a starting point of 6 months with a range of 3 months to 1 year for a first knife offence. The fact that it’s a knife makes it serious from the start and, where the offender is an older youth you might find the usual considerations are not so persuasive. That starting point is just for carrying a knife with no aggravating features; using it to threaten [S139 AA(1)] takes the starting point up to 15 months and higher if the greater harm box is ticked.
The “NHS” Approach
It may be worth citing the NHS approach at sentence. Any defendant from a background where they feel marginalised through race may well benefit more from input from YOT or Probation than they will by being “banged-up.” Expect that to fall on deaf ears initially though – you’ll have to be persuasive. It’s worth taking time to ask Probation exactly what’s involved with the RAR days for this defendant so you can show the judge exactly why it’s a better approach. Intensive orders are also potentially longer than any sentence which again can assist in persuading the judge it’s not a soft option.
It’s also worth remembering before you get anywhere near sentence that the Crown does have a couple of hurdles to cross to prove the offence. In addition to a defence of lawful excuse the Defence have the following in their armoury and they are very often overlooked.
First, any folding knife with a blade three inches or under does not fall foul of the law. Where there is any doubt, it is always worth adjourning for the Crown to check an offence has actually taken place. Locking knives are not folding knives.
Second, there are lots of surprising places which are not legally “public places”. For the purposes of simple possession, a school is not a public place. Carrying a knife on school premises must be charged under S139A. Threatening with a knife does incorporate school premises.
Similarly hostels, even in a communal area or the grounds are not generally public, nor are house driveways are not. [Harriot v DPP  EWHC 965 (Admin) and R v Roberts  67 Cr.App.R 228]. It’s often worth stopping to consider who has access and whether it’s permitted access or public access.
Blades as an aggravating feature rather than the subject of a charge
Timed and negotiated well, a defence advocate can often push the Crown into including a blade as an aggravating feature of another charge. This leaves the defendant with a strike-free antecedent record meaning he won’t be looking at a minimum sentence if he finds himself back in similar circumstances.
Finally, can the Crown show possession? For the purposes of the Act, possession means on the person – not in a car or in a warehouse (they’re not likely to be public places in any event).
Most cases of Possession of a Bladed Article are, of course, nailed on. But it’s worth considering all of the above. Cases charged but legally falling short of an offence occur frequently. It is up to the defence to spot the errors and oversights.
Kirstin Beswick is able to provide expert advice and advocacy in cases involving all types of weapons from knives to firearms and explosives.
Central Chambers’ criminal team includes experts in all types of violent offending and weapons offences.
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